Texas Grand Jury Reform Does Not Go Far Enough

Governor Greg Abbott recently signed a law which make significant changes to the way a grand jury is selected. The old “pick your pal” method of selecting grand jurors is now history, but the new law doesn’t address other problems with the grand jury process.

How the grand jury selection process used to work:

A grand jury is a group of 12 citizens selected in a particular jurisdiction to decide whether a person should be indicted for a felony offense. Unlike the familiar jury in the courtroom (the “petit jury”), which is empaneled to decide whether a person is guilty or innocent of a crime, the grand jury has to answer a “threshold” question — whether there is probable cause to accuse a person of a specific crime or crimes. So the grand jury acts as the justice system’s gatekeeper.

Prior to the recent change in the law, the members of the grand jury could be selected in one of two ways.

First, a district judge could appoint two to five “commissioners” who would then have the power to select the grand jury. Aside from some basic qualifications, there were no restrictions on who the judge could select, hence the reference to the old law as “pick a pal” — nothing in the old law restricted a district court judge from selecting his or her friends and allies as commissioners. The obvious problem with this system is that it allows a select group of people to potentially influence the indictment process.

Second, the statute also allows for a randomized selection process for the grand jury which relies on the same method of selection used in picking panels of prospective jurors for trials.

The new law gets rid of the jury commissioner altogether and leaves only the second method of random selection.

This helps avoid cronyism, and has been hailed as an improvement on the old method.

However, the new changes to law don’t solve some problems inherent in the Texas version of the grand jury system. First, grand juries often just rubber stamp whatever the prosecutor wants to do. In theory, the grand jury is shielded from influence because its deliberations are secret — the Code of Criminal Procedure explicitly prohibits anyone from physically intruding on the grand jurors as they deliberate, and anyone who violates this prohibition is subject to a potential $500 fine and 30 days in jail. However, in practice prosecutors have a huge amount of control over the process and over the decision to indict. Prosecutors normally control what the grand jurors hear about the case (usually the grand juries just get a summary of the evidence which is read to them by the prosecutor). They get to present the facts anyway they want, and since defense attorneys are not allowed inside the grand jury room, there’s no check on what the prosecutor is doing. This can lead to serious abuses of power, as relayed in a recent Texas Monthly article on one particular grand jury that, with the prosecutor’s approval, threatened to indict witnesses when they didn’t like their testimony

Moreover, prosecutors often use grand juries as way to sidestep hard decisions. My firm has handled numerous cases where the prosecutor has refused to dismiss the charges, but instead offered to present it neutrally to the grand jury. The implicit understanding is that the grand jury will do the hard work of reviewing the case and find it not worth indicting, leaving the prosecutor with “clean hands” if anyone gets mad.

This system works well enough for some cases, but it often encourages prosecutors to do their duty to ensure that justice is done. In more difficult situations (often ones involving allegations of solicitation or sexual assault of a child), a grand jury may be more inclined to indict something even if the case is extremely weak. Interestingly, in a Texas District and County Attorneys Association article about grand juries, the chief of the grand jury division of the Harris County DA office admits that prosecutors often use the grand jury to wash out unwanted cases.

The bottom line: the grand jury laws are changing for the better, but the defense needs more safeguards at the front end to ensure that the system is not being abused.